BY the time Jo was 15 she had slept with three boys her age. Now, 17, the teenager from South Gyle recalls that having underage sex was no big deal. After all, all her friends were doing it. "Teenagers grow up so much quicker these days and it's just the thing we do. People need to accept it," she says.
What teenage girls currently following in Jo's footsteps might need to accept, though, is that they may become criminals should their sexual antics be uncovered.
While sexual intercourse before the age of 16 is illegal, up until now young girls ha
ve not been equal with teenage boys when it comes to prosecution. However, a new Sexual Offences Bill proposes that should change to ensure the legislation is gender-neutral.
The new proposals mean it would be statutory rape to have sex with a boy or girl under 13 and concerns about consenting sex between vulnerable 13 to 15-year-olds could be referred to the Scottish Children's Reporter's Administration. This would mean those involved – boy or girl – ending up with a criminal record.
The move has been welcomed by organisations such as the Not With My Child family values pressure group, the Roman Catholic Church, the Christian Institute and the Scottish Labour Party, who believe that different rulings for different sexes could result in a "creeping decriminalisation" of underage sex, which would send out the wrong message.
But when an 11-year-old can become Scotland's youngest mum – two years ago a West Lothian youngster laid claim to such a dubious title – and when two schoolgirls become pregnant in the Lothians every week, will making their actions criminal force them into celibacy until 16, or will it lead to scared, vulnerable girls refusing to seek help either with contraception or pregnancy issues because they fear the criminal repercussions?
Certainly the Children's Commissioner, Professor Kathleen Marshall, believes the latter, and has asked MSPs to delay introducing the legislation until the possible consequences can be researched.
"Imagine your 15-year-old girl has had a relationship with her 15-year-old boyfriend, she is pregnant and standing before you," she says. "She is upset, you are upset and now it is a criminal offence as well. Are you going to get a police investigation? Even if it goes to the children's hearing on the grounds that she has committed an offence, it is going to follow her for the rest of her life on the basis that she has committed a sexual offence – is that what people want?"
Prof Marshall believes a welfare, rather than criminal, response is needed when it comes to dealing with consensual sex between under-16s – although it is still vital that there should not be a lowering of the age of consent. "We need to be certain that the threat of legal punishment and criminalisation does in fact prevent early sexual activity. Extending the threat – empty or otherwise – to girls, may have serious negative consequences, such as preventing them from seeking help."
Prof Marshall is not alone in her beliefs. Victim Support Scotland, Barnardo's and Children 1st all believe criminalising young girls could lead to more problems.
Professor Kenneth Norrie, head of Strathclyde University's Law School and an expert in child protection law, says: "The Scottish Government rejected the proposal of the Scottish Law Commission to make sexual activity between young people (13-15) completely non-criminal but instead made it a ground of referral to the children's hearing system.
"They consider that there are important symbolic reasons to retain criminality of such activity but there is another principle, which is to identify the correct response to sexual activity amongst the 13-15 year -old age group.
What is needed is an educational and healthcare response rather than either a criminal or a child protection response.
He adds: "The real danger is that a child referred to a children's hearing on the basis of having committed an offence will become a "sex offender" and will be subject to disclosure requirements which will prevent them, for example, from working with children or becoming youth leaders or whatever, for the rest of their lives.
"This is a disproportionate response to an act of youthful sexual activity – when it is consensual sexual activity. The solution is to require children's reporters who feel the need to refer the child to a hearing to refer on the basis of the child being a victim rather than a perpetrator of a sexual offence – and under the new Bill all 13-15-year-olds will be both."
The Association of Chief Police Officers in Scotland (Acpos) also believes cases of consensual sex involving under-16s should only be investigated where there is evidence of exploitation, including bribery, threats and grooming, or where alcohol or other substances are involved. It's perhaps no surprise the police feel that way given that, according to statistics, 29 per cent of Scottish teenagers admit to losing their virginity before they are 16, and four per cent to losing it before they are even 14. The potential caseload would be enormous.
However, John Deighan, parliamentary officer for the Roman Catholic Church agrees with the proposals. "It's not about making life difficult for youngsters, it's about giving the authorities the mechanisms to intervene where there is unusual sexual behaviour, and sex between 13-year-olds is unusual."
Mike Judge, the Christian Institute's head of communications, refutes the suggestion that criminalisation of girls will lead to more sexual health problems.
"Those who support the decriminalisation of underage sex argue that teenagers are far more sexually aware than they used to be and so long as they are of similar age and they both consent to sex, what business is it of the law to criminalise them? Haven't the police got better things to do?
"But the age of consent law sends out a strong signal about what age is appropriate for sexual activity. Relaxing the law in this area will inevitably be interpreted as official sanction for teenage sex.
"Scotland has poor sexual health with a rising incidence of sexually-transmitted infections and some of the highest teenage pregnancy rates in Europe.
"This is not the time to be giving the green light to teenage sex. Sex is not a recreational activity for kids. We should be giving our children some moral guidance, helping them to say no to underage sex."
